Roe v. TX Dept Protc & Regu

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-50711 _______________

MARY ROE, INDIVIDUALLY AND AS NEXT FRIEND OF JACKIE DOE, A MINOR CHILD; JOHN DOE, AS NEXT FRIEND OF JACKIE DOE, A MINOR CHILD,

Plaintiffs-Appellees,

VERSUS

TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, ET AL.,

Defendants,

BEVERLY STRICKLAND, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Western District of Texas _________________________

July 17, 2002

Before REAVLEY, SMITH, and DENNIS, Mary Roe and John Doe, as parents and Circuit Judges. next friends of Jackie Doe, sued the Texas Department of Protective and Regulatory Ser- JERRY E. SMITH, Circuit Judge: vices (“TDPRS”) and social worker Beverly Strickland after Strickland visually searched

Jackie’s body cavities without a court order. a prompt and thorough investigation of the The district court dismissed the claims against child abuse report. TEX. FAM. CODE ANN. the TDPRS, and plaintiffs do not appeal that § 261.301 (West Supp. 2002). dismissal. The court, however, rejected Strickland’s motion for summary judgment, On July 6-8, Strickland unsuccessfully at- and Strickland appeals based on the denial of tempted to contact Mrs. Roe. On July 9, Mrs. qualified immunity. Roe called Strickland, using a business card that Strickland had left on Mrs. Roe’s Although we conclude that the plaintiffs doorstep. According to Mrs. Roe, during the pleaded a claim and raised a fact question as to July 9 phone conversation Strickland whether Strickland violated Jackie’s Fourth introduced herself, explained that she worked Amendment rights, we reverse because those for CPS, and said she needed to talk to Mrs. rights were not clearly established at the time Roe. Strickland declined to describe the of the search. Strickland is entitled to purpose of the visit and insisted that they talk qualified immunity. The other allegations do in person. Strickland stated only that she had not establish violations of the Fourth and received a “referral concerning the care and Fourteenth Amendments. We remand for welfare” of Jackie. Strickland and Mrs. Roe consideration of a state law claim. made an appointment for Strickland to visit Mrs. Roe’s house the next morning. I. Strickland worked for TDRPS in the Child- On July 10, Strickland arrived at the house. ren’s Protective Services (“CPS”) division. Mrs. Roe testified that she had a brief On June 29, 1999, the CPS Statewide Intake conversation with Strickland outside the front Unit received a “hotline” call concerning Jack- door; Strickland introduced herself again, ie, alleging that while she was attending a day explained her affiliation with CPS, and gave camp, someone observed her “touch[ing] Mrs. Roe a business card. Mrs. Roe testified another six-year-old female’s private parts and that Strickland entered the house without an kiss[ing] her on the lips”; Jackie then allegedly invitation or permission; Strickland maintains “began dancing and licked her finger and ran it that she was invited inside. Mrs. Roe testified down her body and touched her own private that Strickland did not act in a manner parts.” The events occurred in a bathroom designed to frighten or intimidate. Mrs. Roe where Jackie, naked, was changing out of her also admitted that she did not say or do swimsuit. anything to show that she did not want Strickland to enter. The intake workers concluded that Jackie’s “behavior indicates that she may have been After entering the house, Strickland sexually abused.” The report assigned the case explained the purpose of the visit and a priority 2 status, requiring a CPS discussed the report that had been made to investigator to attempt contact with the family CPS. Mrs. Roe asked Strickland whether she in ten days. Samantha Woods, the supervisor should contact an attorney, and Strickland for the CPS investigative unit, agreed with the stated, “Oh no, no. Don’t worry about it. priority 2 status and assigned the case to You don’t need anybody.” Strickland, who was required by law to make

After asking some questions, Strickland she would not have taken the pictures but told Mrs. Roe that she needed to take pictures opined that the decision to do so lay within of Jackie. Strickland did not give the mother Strickland’s discretion. Robert Brown, a Pro- the option of submitting to the examination gram Director at CPS, described the visual ex- and pictures or refusing them. Strickland did amination and pictures as appropriate because not disclose the type of pictures or extent of “caseworkers are trained to find and document the examination. Strickland acknowledges all available evidence during their that she could have requested a medical investigations.” After Mrs. Roe’s attorney examination but did not do so. She had re- complained to CPS, Woods reassigned the ceived no training in photography of case to Michelle Carter. CPS “ruled out” children’s genitalia. abuse and closed the case.

Strickland asked Mrs. Roe to remove the Jackie subsequently experienced frequent child’s upper clothing, so she could look for nightmares involving the incident, and bruises or marks. Strickland found none. exhibited anxiety responses, for which she Strickland then asked Mrs. Roe to remove underwent counseling. The symptoms Jackie’s underwear, so that Strickland could persisted for about six months. Mrs. Roe see if anything was abnormal. Mrs. Roe asked experienced a loss of sleep, sadness, and whether it was really necessary, and Strickland depression for the same period of time. responded “Oh, don’t worry. It’s more stressful for the parent than it is the child.” II. Strickland took pictures of Jackie’s vagina and Plaintiffs sued Strickland, TDPRS, and cer- buttocks in a closed position, and then in- tain TDPRS officials under 42 U.S.C. § 1983, structed Mrs. Roe to spread Jackie’s labia and alleging a violation of their Fourth Amendment buttocks, so that she could take pictures of the right to freedom from unreasonable searches, genital and anal areas. Although Mrs. Roe Fourth and Fourteenth Amendment rights to asked a couple of times whether the privacy, and Fourteenth Amendment liberty photographs were necessary, she never interests. They also asserted state law claims requested that Strickland stop. Mrs. Roe of invasion of privacy, intentional infliction of “teared up” as Strickland took the pictures, emotional distress, false imprisonment, but did not cry. trespass, and negligent failure to train and supervise. Mrs. Roe testified that Strickland never said anything about removing the child from the Defendants filed a motion to dismiss and a home. After taking the pictures, Strickland motion for a reply under FED. R. CIV. P. 7. interviewed Jackie for fifteen to twenty After plaintiffs filed a rule 7 reply, the court minutes. Strickland and Mrs. Roe had another dismissed all defendants but Strickland, who brief discussion, and Strickland left. then moved for summary judgment, asserting qualified immunity to the § 1983 claims and Plaintiff’s expert, Lawrence Daly, testified official immunity to the state law claims. The by affidavit that Strickland could not have be- court denied the motion, whereupon lieved in good faith that the examination and Strickland filed her interlocutory appeal. pictures were necessary. Woods testified that

III. Our decision hinges on the resolution of Social workers may assert a qualified im- legal, not factual, questions. “We examine the munity defense when sued under § 1983.1 The plaintiffs’ factual allegations only to determine denial of summary judgment based on qualified whether they would be sufficient, if proven, to immunity is appealable under the collateral make out a violation of clearly-established order doctrine before final judgment. Mitchell law.” Geter v. Fortenberry, 882 F.2d 167, v. Forsyth, 472 U.S. 511, 526-28 (1985). We 169 (5th Cir. 1989). Our review of the legal can review the denial only to the extent it questions is de novo. Id. “turns on a question of law.” Id. If disputed factual issues are material to qualified IV. immunity, the denial is not appealable. The district court found that plaintiffs cre- Feagley v. Waddill, 868 F.2d 1437, 1439 (5th ated a fact question about whether Strickland’s Cir. 1989) (dismissing appeal because factual entry into their home violated their Fourth arguments went to merits and not to qualified Amendment rights. Strickland argues, first, immunity defense). that social workers need not satisfy the traditional Fourth Amendment requirements This appeal turns on legal questions about when conducting an investigative home visit, the scope of Mrs. Roe’s and Jackie’s and, second, that Mrs. Roe consented to her constitutional rights and Strickland’s qualified entry. We avoid the first question by holding immunity defense. The only disputed, material that Mrs. Roe consented to an investigative fact is whether Mrs. Roe invited Strickland home visit. into the house while the two stood on the front porch. Because we can resolve the legal issue A. while assuming the truthfulness of Mrs. Roe’s In reviewing a claim of qualified immunity, testimony, this is not the type of “material we are bound to follow the two-step inquiry fact” issue t hat divests the appellate court of explained in Siegert v. Gilley, 500 U.S. 226, jurisdiction. Cantu v. Rocha, 77 F.3d 795, 232-34 (1991). Branton v. City of Dallas, 803 (5th Cir. 1996). The limit on appellate 272 F.3d 730, 744 (5th Cir. 2001). We first review applies only when “what is at issue in must determine “whether plaintiff’s the sufficiency determination is nothing more allegations, if true, establish a constitutional vi- than whether the evidence could support a olation.” Hope v. Pelzer, 2002 U.S. LEXIS finding that a particular conduct occurred.” 4884, at *11-*12 (U.S. June 27, 2002) (No. Behrens v. Pelletier, 516 U.S. 299, 313 01-309) (citing Saucier v. Katz, 533 U.S. 194, (1996). 201 (2001)). Only if we decide that the defendant state actor engaged in such “cons- titutionally impermissible conduct,” id. at *16, do we proceed to the next step, which is to 1 Doe v. Louisiana, 2 F.3d 1412, 1416 (5th Cir. determine whether defendant’s actions “violat- 1993) (“Child care workers are entitled to qualified e[d] ‘clearly established statutory or immunity in the performance of discretionary, constitutional rights of which a reasonable nonprosecutorial functions.”) (citations omitted); person would have known,’” id. (quoting Stem v. Ahearn, 908 F.2d 1, 5 (5th Cir. 1990) Harlow v. Fitzgerald, 457 U.S. 800, 818 (same); Hodorowski v. Ray, 844 F.2d 1210, 1216 (1982)). The first question is governed by our (5th Cir. 1988) (same).

current understanding of constitutional rights, question of first impression in this circuitSSan and the second by what was reasonably under- issue over which other courts of appeals have stood at the time of the challenged act, which divided.4 We need not resolve this conflict, here occurred in July 1999. however, because we conclude that Mrs. Roe consented to an investigatory home visit. B. The district court held that to enter a par- C. ent’s or child’s home and conduct an investi- As we have stated, the district court gatory home visit, social workers must show decided that plaintiffs created a fact question probable cause and obtain a warrant, receive concerning whether Mrs. Roe consented to the consent, or act in response to exigent strip search, but the court did not carefully circumstances. Strickland argues, to the con- isolate the question of Strickland’s entry into trary, that the court should have applied the the house. On appeal, Strickland argues that more general (and lenient) “special needs” Mrs. Roe consented to the investigative home balancing test. visit, so she should not have an individual claim for violation of her Fourth Amendment We have held that the Fourth Amendment rights but, instead, could only assert Jackie’s regulates social workers’ civil investigations, Fourth Amendment claim stemming from the but we have not fleshed out the relevant search. Fourth Amendment standards. 2 The procedural postures of those cases did not At the first stage of the Siegert inquiry, we require us to choose between applying the assume the accuracy of Mrs. Roe’s version of traditional or the special needs doctrines.3 the facts. Branton, 272 F.3d at 744. On Selecting the applicable test for a social July 9, Strickland called Mrs. Roe, identified worker’s investigative home visit would be a herself as a CPS worker, and requested to speak with her regarding Jackie’s welfare. Strickland was evasive about the reason, but 2 Wooley v. City of Baton Rouge, 211 F.3d Mrs. Roe established an appointment for the 913, 925 (5th Cir. 2000) (“[I]dentical fourth home visit anyway. At the time of the ap- amendment standards apply in both the criminal pointment, Strickland appeared at Mrs. Roe’s and civil contexts.”); Franks v. Smith, 717 F.2d doorstep and asked for permission to enter; 183, 186 (5th Cir. 1983) (“A section 1983 action can also lie against others, such as social workers, 4 where actions by them were taken in their official Compare Wildauer v. Frederick County, 993 capacity as state employees.”). F.2d 369, 372 (4th Cir. 1993) (applying “special needs” doctrine to social worker’s investigative 3 Wooley, 211 F.3d at 925 (explaining that home visit to check for physical abuse) with Good although defendants conceded that they lacked a v. Dauphin County Soc. Servs. for Children & warrant or probable cause, the panel must remand Youth, 891 F.2d 1087, 1094-95 (3d Cir. 1989) for defendants to provide record evidence of the (applying traditional Fourth Amendment test to importance of the governmental interest); Franks, investigative home visit by police officer and social 717 F.2d at 186 (deciding only that plaintiff cre- worker), and Calabretta v. Floyd, 189 F.3d 808, ated federal question jurisdiction under § 1983 by 813 (9th Cir. 1999) (rejecting argument that social alleging that police officer and social worker en- worker does not usually need a court order to make tered home without permission). an investigatory home visit against parent’s will).

Mrs. Roe did not respond, and Strickland went social workers to enter homes without per- into the house. mission. Although they still must obtain the parent’s verbal, affirmative consent before Silence or passivity cannot form the basis conducting an investigative home interview, for consent to enter.5 But, Strickland relied on they need not obtain that consent again when far more than Mrs. Roe’s mere silence. Over they appear at the parent’s doorstep. the phone, Strickland had identified herself as a CPS employee and explained the general It follows that the district court erred in purpose of her visit, and Mrs. Roe had agreed holding that Mrs. Roe had not consented to to an appointed time for the home interview. Strickland’s entry; the court should have dis- missed Mrs. Roe’s Fourth Amendment claim. After that conversation, Strickland justi- Because, under the first step of the Siegert fiably believed she had the right to enter. To methodology, Strickland did not violate Mrs. rebut that justifiable belief, Mrs. Roe cannot Roe’s Fourth Amendment rights, we need not rely only on her silence or passivity. Requiring advance to the second step of the Siegert test Mrs. Roe to rescind her initial invitation does to address whether those rights were “clearly not relax the consent standard or encourage established.”

V. 5 In United States v. Vega, 221 F.3d 789, 797 We next evaluate Jackie’s Fourth (5th Cir. 2000), we held that a suspect did not Amendment claim against Strickland for the consent when he lied about whether he lived in a visual body cavity search and pictures. Mary house and failed to object to the subsequent search. and John Doe assert this claim on Jackie’s In United States v. Jaras, 86 F.3d 383, 390 (5th behalf. We answer the first prong of the Cir. 1996), the panel refused to find consent where the officer did not ask for permission and the Siegert test by concluding that Strickland did suspect did not grant permission but stood by as violate Jackie’s Fourth Amendment rights, but, the officer searched. Finally, in United States v. moving to the second part of that test, we Cooper, 43 F.3d 140, 145 n.2 (5th Cir. 1995), we determine that those rights were not clearly explained that “nonresistance may not be equated established on July 10, 1999, so Strickland is with consent.” In United States v. Varona-Algos, entitled to qualified immunity.⁶ 819 F.2d 81, 83 (5th Cir. 1987), we reached a contrary result, upholding the conclusion that the 6 suspect “had impliedly consented to the search by The Supreme Court has made plain that we standing by and equivocally acknowledging the bag should consider whether the public official has vi- was his and allowing the trooper to go ahead olated a constitutional right before we consider without any objection.” whether that right was “clearly established.” Wil- son v. Layne, 526 U.S. 603, 609 (1999) (“A court Varona-Algos, however, predates the Supreme required to rule upon the qualified immunity issue Court’s shift to an objective standard for must consider, then, this threshold question: Taken determining whether a suspect has consented to a in the light most favorable to the party asserting the search. We have recognized that the change in Su- injury, do the facts alleged show the officer’s preme Court doctrine abrogated Varona-Algos. conduct violated a constitutional right?”); County Jaras, 86 F.3d at 391 n.6 (citing Illinois v. of Sacramento v. Lewis, 523 U.S. 833, 842 n.5 Rodriguez, 497 U.S. 177 (1990); Florida v. (1998) (“[T]he better approach to resolving cases Jimeno, 500 U.S. 248 (1991)). (continued...)

A. The Third, Ninth, and Tenth Circuits have re- The district court held that the Fourth jected the Seventh Circuit’s approach and ap- Amendment requires social workers to show ply instead the traditional Fourth Amendment probable cause and obtain a court order, standard to juvenile strip searches.8 The Sec- receive consent, or act in response to exigent ond Circuit has taken an intermediate position: circumstances to search visually, and to Even if social workers need not satisfy the photograph, a child’s body cavities. On probable cause and warrant requirement in all appeal, Strickland argues that the court should cases, they must obtain prior judicial approval have applied the “special needs” balancing test when doing so would not threaten the child’s instead. She contends that the anonymous well-being.9 To take sides in this inter-circuit hotline call justified her search under the more conflict, we focus on Supreme Court lenient test. precedent establishing the “special needs” doctrine. We have not addressed which Fourth Amendment test should apply to a social In “special needs” cases, the Court has worker’s visual search of a child’s body carved out an exception to the warrant and cavities, and the ot her courts of appeals are probable cause requirement. Public officials divided. The Seventh Circuit has held that a can justify warrantless searches with reference child protective services worker need only sat- to a “special need” “divorced from the State’s isfy the lesser special needs test and not the general interest in law enforcement.” more rigorous probable cause requirement.7 Ferguson v. City of Charleston, 532 U.S. 67,

79 (2001). Special needs justify, for example, judged the search’s lawfulness not by a principal’s search of a student’s purse for “probable cause” or “reasonable suspicion” but drugs in school; a public employer’s search of by “the standard of reasonableness under all of an employee’s desk; a probation officer’s war- the circumstances.” O’Connor, 480 U.S. at rantless search of a probationer’s home; a Fed- 725-26. eral Railroad Administration regulation requiring employees to submit to blood and ur- We must narrow these diverse cases to ine tests after major train accidents; drug test- those most analogous to Strickland’s visual ing of United States Customs Service employ- body cavity search. Strip searches implicate ees applying for positions involving drug inter- fundamental Fourth Amendment rights.11 Al diction; schools’ random drug testing of student athletes, and drug testing of all public school students participating in extracurricular 10 (...continued) activities.10 In all these cases, the Court (citations and internal quotations omitted); Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 666 (1989) (permitting drug testing by 10 New Jersey v. T.L.O., 469 U.S. 325, 341 Customs’ service because of critical safety (1985) (“[T]he accommodation of the privacy concerns and results were not made available to interests of schoolchildren with the substantial need law enforcement); Veronia Sch. Dist. v. Acton, 515 of teachers for . . . or der in the schools does not U.S. 646, 657-58 (1995) (upholding uniform poli- require strict adherence to the requirement that cy of suspicionless searches of student athletes); searches be based on probable cause . . . .”); Bd. of Educ. v. Earls, 2002 U.S. LEXIS 4882, at O’Connor v. Ortega, 480 U.S. 709, 728 (1987) *15 (U.S. June 27, 2002) (No. 01-332) (holding (“[P]ublic employer intrusions on the that special needs “inhere in the public school constitutionally protected privacy interests of gov- context”). ernment employees for non-investigatory, work- 11 related purposes, as well as for investigations of Bell v. Woolfish, 441 U.S. 520, 594 (1979) work-related misconduct, should be judged by the (Stevens, J., dissenting) (describing body cavity standard of reasonableness under all the circum- searches as “clearly the greatest personal stances.”); Griffin v. Wisconsin 483 U.S. 868, indignity”); Moore v. Carwell, 168 F.3d 234, 236- 873-74 (1987) (“A State’s operation of a probation 37 (5th Cir. 1999) (holding that strip search of system, like its operation of a school, government female prisoner in front of male guards might vio- office or prison, or its supervision of a regulated late Fourth Amendment right to privacy); Watt v. industry, likewise presents ‘special needs’ beyond City of Richardson Police Dep't, 849 F.2d 195, normal law enforcement that may justify 199 (5th Cir. 1988) (finding that strip search of departures from the usual warrant and probable- arrestee based on twenty-year-old minor drug of- cause requirements.”); Skinner v. Ry. Labor Exec- fense violated the Fourth Amendment); Mary Beth utives Ass’n, 489 U.S. 602, 620 (1989) (“The . . . G. v. City of Chicago, 723 F.2d 1263, 1272 (7th interest in regulating the conduct of railroad em- Cir. 1983) (describing strip searches as “de- ployees to ensure safety, like its supervision of meaning, dehumanizing, undignified, humiliating, probationers or regulated industries, or its terrifying, unpleasant, embarrassing, repulsive, operation of a government office school or prison signifying degradation and submission”); Scott A. . . . presents ‘special needs’ beyond normal law en- Gartner, Note, Strip Searches of Students: What forcement that may justify departures from the Johnny Really Learned at School and How Local usual warrant and probable-cause requirements”) School Boards Can Help Solve the Problem, 70 S. (continued...) (continued...)

though none of the “special needs” cases in- compel it; the aid recipient could decline the volved strip searches or nudity, the Court has benefits and no search would take place. Id. at long held that citizens have an especially 317-18. Second, the visitation promoted the strong expectation of privacy in their homes.12 statutory goal of ensuring a decent living We therefore begin by examining the Court’s standard for dependent children, the recipients two cases applying the “special needs” received advanced notice, and the social doctrine to investigative home searches. workers did not target recipients based on individualized suspicion. Id. at 318, 320-21, In Wyman, 400 U.S. at 318, the Court 323. All AFDC recipients had to endure upheld a New York law conditioning visitation; the government did not single out continued Aid to Families with Dependent individual recipients based on potential Children benefits on permitting a home visit. criminal liability. The Court applied a general reasonableness test rather than requiring a warrant and In Griffin, 483 U.S. at 872, the Court up- probable cause. Id. Wyman, however, does held a Wisconsin statute permitting probation not govern the instant case. First, the officers to search probationers’ homes based application of the general reasonableness test on “reasonable grounds.” The Court reasoned was dictum: The Court held that the visitation that the operation of the probation system pre- was not a search because criminal law did not sents “special needs beyond normal law en- forcement.” Id. at 874. The Court 11 distinguished the maintenance and operation of (...continued) a prison or punitive regime from “generalized CAL. L. REV. 921, 930-31 (1997) (describing emo- law enforcement.” Id. Probation sits at the tional impact of strip searches). most lenient point on a continuum of 12 “[P]hysical entry into the home is the chief punishments, but the state retains valid evil against which the . . . Fourth Amendment is interests in rehabilitating the criminal and directed.” United States v. United States Dist. Ct., protecting society. Id. at 874-75. A warrant 407 U.S. 297, 313 (1972). “At the very core [of requirement would divest the state of its the Fourth Amendment and the personal rights it control over the punished probationers, secures] stands the right of a man to retreat into his residing outside of the prison’s walls at the own home and there be free from unreasonable state’s discretion. Id. at 876. The special governmental intrusion.” Silverman v. United status of probationers and the state’s States, 365 U.S. 505, 511 (1961). See also Payton independent interests justify lowering the v. New York, 445 U.S. 573, 586 (1980) (“It is a probable cause and warrant requirements. Id. ‘basic principle of Fourth Amendment law’ that at 878. searches and seizures inside a home without a warrant are presumptively unreasonable.”); Griffin addresses searches based on Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1970) (“It is accepted, at least as a matter particularized suspicion, but it does so in the of principle, that a search or seizure carried out on special context of probationers. Probationers a suspect’s premises without a warrant is per se waive many of their privacy rights and have a unreasonable, unless the police can show that it much lower subjective expectation of privacy falls within one of a carefully defined set of ex- in the home; a warrant requirement would ceptions based on the presence of ‘exigent cir- interfere with the special needs raised by their cumstances.’”).

rehabilitation. Ferguson, 532 U.S. at 81 n.15 privacy.14 The potency of her privacy interest (“[W]e agree with petitioners that Griffin is makes us reluctant to apply the “special needs” properly read as limited by the fact that doctrine. probationers have a lesser expectation of privacy than the public at large.”). And the The home search cases and the importance Court bracketed the question whether the of Jackie’s privacy interest give us pause; the routine use of probation searches to obtain Texas social workers’ dual purposes and en- criminal convictions would violate the Fourth tanglement with law enforcement resolve the Amendment.13 question. None of the previous courts of ap- peals to address these issues had the benefit of The home search cases underscore the Ferguson, 532 U.S. 67, the Court’s recent de- strength of Jackie’s privacy interest. As the cision examining dual-purpose searches and Seventh Circuit aptly explained in a decision the special needs doctrine. pre-dating its adoption of the special needs test, “[i]t does not require a constitutional In Ferguson, 532 U.S. at 78-79, the Court scholar to conclude that a nude search of a held that the higher probable cause and thirteen-year-old child is an invasion of warrant standard applies where a state constitutional rights of some magnitude. More hospital’s drug testing of pregnant women than that: it is a violation of any known systematically threatened them with criminal principles of human decency.” Doe v. liability. The pregnant women who tested Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980) positive faced either automatic criminal (per curiam); supra note 11. indictment or forced diversion into a treatment program. Id. at 73. The Court rejected the The Court only rarely has permitted argument that protecting the health of the “special needs” searches in the face of a mother and child is a “special need” sufficient person’s strong subjective privacy interests. In to dispense with the warrant requirement. Id. Wyman and Griffin, the searched persons at 81. voluntarily surrendered a great deal of the privacy interest in their homes. The Court has Claimed special needs should receive “close never upheld a “special needs” search where review.” Id. Where the “special need” is not the person’s expectation of privacy was as “divorced from the state’s general interest in strong as is Jackie’s interest in bodily law enforcement,” the Court will not recognize it. Id. at 79. The Court views entanglement with law enforcement suspiciously. Id. at 81 n.15, 82. Other societal objectives cannot 13 justify a program that would systematically Griffin, 483 U.S. at 876 n.3 (emphasizing collect information for the police. Id. at 83- consent to search and absence of added legal pen- alty for noncompliance); Skinner, 489 U.S. at 621 84. n.5 (“We leave for another day the question whether routine use in criminal prosecutions of Strickland ultimately fails to identify a “spe- evidence obtained pursuant to the administrative scheme would give rise to an inference of pretext, 14 or otherwise impugn the administrative nature of The Court has permitted visual body cavity the FRA’s program.”). searches only in the prison setting. See Bell.

cial need” separate from the purposes of Strickland argues that a visual body cavity general law enforcement. Identifying the goal search often can disprove sexual abuse of protecting a child’s welfare and removing allegations. Perhaps. But their necessity in him from an abusive home is easy; some cases does not say anything about social disentangling that goal from general law workers’ need to perform warrantless searches enforcement purposes is difficult. In in non-exigent circumstances. The social Ferguson, the Court also faced a quite worker can take many preliminary steps short worthwhile goalSSpreventing the obvious and of visual body cavity searches, such as severe health problems cocaine addiction interviewing the child and the parents. In non- caused to pregnant mothers and unborn exigent circumstances, the worker then has infants. The Court could not, however, apply time to obtain a warrant either personally to the “special needs” test to such a program conduct a visual body cavity search or to have where law enforcement was so deeply a physician perform it. involved. Social workers retain the power to seize a Strickland appropriately points to the fact child if “exigent circumstances” exist; if they that Texas law compels social workers to in- “have reason to believe that life or limb is in vestigate allegations of sexual abuse; she ne- immediate jeopardy,” they need not obtain a glects, however, to mention that the Texas court order. Tenenbaum, 193 F.3d at 604-05 statute deeply involves law enforcement in the (citation omitted). Here, CPS assigned the investigation. CPS has a duty to notify law case a priority 2 status, requiring Strickland to enforcement of any child abuse reports it re- take action in ten days and giving her plenty of ceives. TEX. FAM. CODE ANN. § 261.105(b) time to take other steps and/or seek a court (West Supp. 2002). The district attorney may order. The Texas Family Code establishes a request automatic notification of some or all procedure for obtaining such a court order.15 types of reported physical or sexual abuse. Id. § 261.1055 (West Supp. 2002). Violating these reporting duties can result in criminal 15 The Texas Family Code contemplates that liability. Id. § 261.109 (West 1996). Finally, family courts may issue orders for entry into the investigations into allegations of physical or child’s home or school: sexual abuse are performed jointly with law enforcement agencies. Id. § 261.301(f) (West If admission to the home, school, or any Supp. 2002). place where the child may be cannot be obtained, then for good cause shown the Texas law describes social workers’ court having family law jurisdiction shall investigations as a tool both for gathering order the parent, the person responsible for the care of the children, or the person in evidence for criminal convictions and for charge of any place where the child may be protecting the welfare of the child. Ferguson to allow for entrance for the interview, teaches that we must apply the traditional examination, and investigation. Fourth Amendment analysis where a child protective services search is so intimately TEX. FAM. CODE ANN. § 261.303 (West Supp. intertwined with law enforcement. 2002).

(continued...)

alone, cannot count as consent.16 Inferring We conclude, therefore, that a social work- meaning from Mrs. Roe’s cooperation at each er must demonstrate probable cause and obtain step is even more problematic, because a court order, obtain parental consent, or act Strickland did not even explain the purpose of under exigent circumstances to justify the her visit until entering the house. visual body cavity search o f a juvenile. Because Strickland admits that she did not Strickland did not explain that she would be have probable cause and a warrant or face photographing Jackie’s spread labia and anus exigent circumstances, she can establish the until she instructed Mary to do so. Strickland constitutionality of her search only by showing even actively ignored Mrs. Roe’s protests. that Jackie, or Mrs. Roe acting on her behalf, Mrs. Roe asked whether she should call a consented. lawyer, questioned whether the invasive search was necessary, and “teared up” while B. Strickland took pictures. Strickland brushed The district court found that Mrs. Roe had off Mrs. Roe’s questions and ignored these created a fact question on the issue of consent. signals. In the face of these signals, Strickland Strickland claims that Mrs. Roe consented by at least had the obligation to give Mrs. Roe a failing to stop the search, removing Jackie’s meaningful opportunity to deny consent. clothing, and spreading her private parts for the photographs. In a similar case in which the mother participated in the strip search, the Seventh Although Mrs. Roe gave affirmative Circuit explained its refusal to find consent: consent to the home interview by scheduling a home visit, she never verbally consented to the It is not permissible to hold, as a matter visual body cavity search. Our caselaw teach- of law that the mother’s assistance in the es that silence or a failure to resist, standing procedure amounted to her consent. Indeed, it is difficult to imagine a moth- er, faced with the strip searching of her 15 (...continued) two young children in a public building, Texas law also contemplates that a family court doing anything other than staying and may issue an order compelling a medical or attempting, by her presence, to alleviate psychological evaluation: the understandable apprehension of her children. If a parent or person responsible for the child’s care does not consent . . . to a Darryl H., 801 F.2d at 907. We conclude that medical, psychological, or psychiatric Mrs. Roe and Jackie created a fact question as examination that is requested by the to whether Strickland violated Jackie’s Fourth department or designated agency, the court having family jurisdiction shall, for good Amendment rights. We now turn to the cause shown, order. . . the examination to be question whether those rights were “clearly made at the times and places designated by established” in 1999. the court.

TEX. FAM. CODE ANN. § 261.303 (West Supp. 16 2002). Supra note 5.

C. the state action] gave respondents fair warning 1. that their alleged treatment of [the plaintiff] The district court decided that precedent was unconstitutional.” Id. from other circuits had “clearly established” a parent’s right to refuse the body cavity search 2. of his child absent probable cause; the court On July 10, 1999, Supreme Court and Fifth found that any reasonable social worker would Circuit precedent plainly established the fol- have known that his actions raised serious lowing: (1) A strip or body cavity search rais- Fourth Amendment concerns. Strickland ar- es serious Fourth Amendment concerns, Watt, gues, to the contrary, that neither Supreme 849 F.2d at 199; and (2) The Fourth Amend- Court nor Fifth Circuit precedent “clearly ment governs the lawfulness of a social work- established” such a right. er’s entry into a dwelling to resolve a child custody dispute.17 Mary and Jackie need not In Hope, the Court recently elaborated on prove that “the very action in question has what is required for a particular right to be previously been held unlawful.” Anderson, “clearly established” in the context of qualified 483 U.S. at 640. We had not, however, ever immunity. Reiterating what it previously had addressed whether the traditional test or the said, the Court explained: “special needs” doctrine applies to a social worker’s visual searches of naked juveniles. For a constitutional right to be clearly established, its coutours “must be suffi- This court had provided a little more ciently clear that a reasonable official guidance than simply these general principles. would understand that what he is doing In Doe, 2 F.3d at 1420, we held that under the violates that right. This is not to say Fourteenth Amendment a social worker could that an official action is protected by subject a son and daughter to proctoscopic qualified immunity unless the very action and culdoscopic examinations to check for in question has previously been held abuse. Citing with approval the Seventh unlawful, see Mitchell [v. Forsyth, 472 Circuit’s decisions in Darryl H. and U.S. 511,] 535, n.12; but it is to say that Landstrom, we held that the social workers in the light of pre-existing law the could not have known that their efforts to unlawfulness must be apparent.” investigate abuse violated the family’s Anderson v. Creighton, 483 U.S. 635, Fourteenth Amendment right to privacy. Id. 640 (1987). We did not address the Fourth Amendment question, id. at 1417, 1420, but to a Hope, 2002 U.S. LEXIS 4884, at *17. reasonable lay observer, Doe would have cast doubt on a child’s constitutional right to refuse The Court elaborated that “officials can still a visual body cavity search. be on notice that their conduct violates es- tablished law even in novel factual circumstances.” Id. at *20. Previous cases need not be “fundamentally similar.” Id. “The 17 In Franks, 717 F.2d at 186, we applied the salient question” for a court of appeals is same Fourth Amendment, probable cause standard “whether the state of the law [at the time of to regulate the conduct of both a police officer and a social worker.

Even more importantly, in 1999 the this court has not opined on the issue in Supreme Court had not yet explained whether question and the other circuits are in dis- agencies performing a legitimate “special agreement as to whether the challenged acts need” entangled with law enforcement need to constitute a constitutional violation.20 We satisfy the probable cause standard. need not even reach the question whether, or Subsequently, in Ferguson, 532 U.S. at 77-78, to what extent, the law of other circuits may the Court distinguished previous drug testing be relevant to our qualified immunity cases that employed a general reasonableness jurisprudence, in the absence of plain guidance balancing by emphasizing the hospital’s from our own circuit’s caselaw, because here “authority . . . to turn the results over to law the other circuits were inconsistent in their enforcement agents without the knowledge or treatment of the rights here alleged. consent of the patients.” Mrs. Roe and Jackie also argue, however, The Supreme Court’s previously vague test that even if the Fifth Circuit had not clearly for finding a “special need” caused the federal rejected the “special needs” doctrine in 1999, circuits to diverge over this precise substantive Strickland’s actions violate the general question18 and to disagree again as to whether the rights were “clearly established” for 20 purposes of qualified immunity.19 It is difficult Wilson, 526 U.S. at 618 (“Between the time to argue that a matter of law is clearly of the events of this case and today’s decision, a established for state actors in this circuit where split among the Federal Circuits in fact developed . . . . If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the 18 controversy.”); Mitchell, 472 U.S. at 534-35 & Supra notes 7-9. n.12 (“[“[I]n cases where there is a legitimate 19 The Third and Ninth Circuits held that the question whether an exception to the warrant children’s rights were clearly established. Good, requirement exists, it cannot be said that a 891 F.2d at 1083-84 (finding that sparsity of child warrantless search violates clearly established abuse cases does not justify officer or social work- law.”); Hall v. Thomas, 190 F.3d 693, 696-97 (5th er’s violation of bedrock constitutional principles Cir. 1993) (finding law not clearly established, about the privacy of the home and freedom from partially because “neither the Fifth Circuit nor the body cavity searches); Calabretta, 189 F.3d at 813 Supreme Court had spoken” and “a circuit split ex- (interpreting circuit precedent that prohibited police isted”); Gunaca v. Texas, 65 F.3d 467, 475 (5th officers from entering dwellings and resolving Cir. 1995) (finding circuit split relevant as to custody disputes without warrants). The Second whether right was clearly established); McDuffie v. and Seventh Circuits concluded that the Fourth Estelle, 935 F.2d 682 (5th Cir. 1991) (“Absent Circuit’s opinion in Wildauer justified refusing to binding precedent in this circuit and faced with grant qualified immunity. Tenenbaum, 193 F.3d at somewhat conflicting decisions in the two circuits 605 (finding qualified immunity for removal of which actually addressed the issue . . ., we cannot child from school and gynecological exam without say that the law . . . was clearly established.”). But warrant or court order); Darryl H., 801 F.2d at see Shipp v. McMahon, 234 F.3d 907, 915 (5th 908 (granting qualified immunity in 1986 because Cir. 2000) (“[I]n determining whether a right is neither the Supreme Court nor any court of appeals clearly established, we are confined to precedent had addressed the constitutionality of child abuse from our circuit or the Supreme Court) (citation searches). omitted).

reasonableness balancing test. By July 10, considered a constitutional violation. 1999, only the Seventh Circuit had applied the “special needs” doctrine to a social worker’s With Doe on the books and the “special warrantless, visual body cavity search. In the needs” test governing, children’s rights against first such consolidated case, the Seventh these searches definitely were not “clearly Circuit affirmed the refusal to grant a established.” Accordingly, on July 10, 1999, preliminary injunction against the state Jackie’s rights, in the context of this case, agency’s procedures; the court also affirmed a were not clearly established, so Strickland is summary judgment in favor of the social entitled to qualified immunity on the claim that workers because the child’s constitutional she unconstitutionally conducted a visual body rights were not clearly established. Darryl H., cavity search. 801 F.2d at 901. In the second case, the Sev- enth Circuit held that the doctrine’s general VI. balancing test did not clearly establish the The district court also refused to grant child’s constitutional rights. Landstrom, 892 summary judgment on plaintiffs’ claims that F.2d at 676. Strickland violated their Fourteenth Amendment rights to family association and The possibility existed that other courts bodily integrity. The Supreme Court, might have declared Strickland’s strip search however, has repeatedly held that where the unconstitutional under the general balancing Fourth Amendment fully protects against a test.21 A reasonable social worker in this cir- particular government intrusion, courts cannot cuit, however, knew only that Doe remained consider substantive due process rights. The the law and that the Supreme Court had grant- Fourth Amendment fully embraces a parent or ed public officials broad leeway under the child’s claim that a social worker has “special needs” doctrine. unlawfully entered the home and conducted a visual body cavity search. Plaintiffs therefore Children’s protective services workers face cannot state a claim under the Supreme difficult decisions in the field. They must Court’s substantive due process doctrine. make on-the-spot decisions regarding whether to remove a child from a dangerous environ- The Supreme Court has “always been re- ment or whether, on the other hand, to make luctant to expand the concept of substantive the judgment call that the child is in no danger due process.” Collins v. City of Harker and should remain with his family. Because Heights, Tex., 503 U.S. 115, 125 (1992). The the array of factual situations is endless, so too more-specific-provision rule established in is the list of possible reactions to them. In July Graham v. Connor, 490 U.S. 386, 395 (1989), 1999, there was insufficient legal guidance, reflects this reluctance. even under the standard enunciated in Hope, to inform a CPS worker that what Strickland In Graham, the Court held that “[b]ecause did in reaction to the reports received about the Fourth Amendment provides an explicit Jackie’s conduct ultimately would be textual source of constitutional protection against this sort of physically intrusive government conduct, that Amendment, not the 21 The Second Circuit did so on October 13, more generalized notion of ‘substantive due 1999. Tenenbaum, 193 F.3d at 605-06.

process,’ must be the guide for analyzing the The Fourth Amendment offered Mrs. Roe claims.” Id. The Court rejected the peti- and Jackie complete protection from tioner’s claimed right to be free from arbitrary Strickland’s investigative home visit and visual exercises of government power that “shock the body cavity search. Mrs. Roe could have re- conscience.” The Court did not cast doubt on fused to permit Strickland’s entry into the the pedigree of that particular substantive due home, and Strickland then would have been process right, but, instead, held that whenever forced to obtain a court order. Mrs. Roe re- the Fourth Amendment fully protects against fused to consent to the strip search, and the an unlawful arrest, courts should not consider Fourth Amendment rendered that subsequent the vaguer protections established by search unlawful; that amendment fully substantive due process. Since Graham, the embraces the governmental action complained. Court has adhered to this principle in a variety We therefore cannot consider plaintiffs’ of contexts.22 substantive due process rights to family association and bodily integrity.23

22 Lewis, 523 U.S. at 842-44 (analyzing This analysis is consistent with other child speeding motorcyclist’s suit for officers’ allegedly custody cases analyzing parents and children’s reckless pursuit under substantive due process be- rights to family association and bodily cause no “seizure” had occurred, and pursuit fell integrity. In every one of the family as- outside of Fourth Amendment’s scope); United sociation cases, we conducted the substantive States v. Lanier, 520 U.S. 259, 272, n.7 (1997) due process analysis because the social worker (finding that state judge’s rapes of courthouse had removed the child from its family home.24 employees and job applicants could support in- dependent claim under substantive due process); id. (“Graham simply requires that if a constitutional claim is covered by a specific constitutional 22 (...continued) provision, such as the Fourth or Eighth Id. at 813 (Rehnquist, J., joined by O’Connor, Amendment, the claim must be analyzed under the Scalia, and Ginsburg, JJ.); id. at 814 (Scalia, J., standard appropriate to that specific provision, not concurring); id. (Ginsburg, J., concurring); id. at under the rubric of substantive due process.”); 817 (Kennedy, J., joined by Thomas, J., Whitley v. Albers, 475 U.S. 312, 327 (1986) (“We concurring); id. at 820-21 & n.2 (Souter, J., think the Eighth Amendment, which is specifically concurring); id. at 305-06, 310 (Stevens, J., joined concerned with the unnecessary and wanton by Blackmun, J., dissenting). infliction of pain in penal institutions, serves as the primary source of substantive protection to 23 The Second and Seventh Circuits have taken convicted prisoners in cases such as this one, where the same approach. Tenenbaum, 193 F.3d at 600 the deliberate use of force is challenged as (refusing to analyze searches under substantive due excessive and unjustified.”). In Albright v. Oliver, process). Cf. Darryl H., 801 F.2d at 901 n.7 510 U.S. 266 (1994) (plurality), the Justices dis- (explaining that the court would use the same agreed as to whether the Fourth Amendment’s analysis to evaluate Fourth and Fourteenth Amend- prohibition against unlawful arrests extended to a ment claims). malicious prosecution claim. Every writing Jus- 24 tice, however, agreed that if the Fourth Amendment Morris v. Dearborne, 181 F.3d 657, 671 (5th embraced the claim entirely, the Court could not Cir. 1999) (deciding that teacher violated right to consider a separate substantive due process claim. family integrity by falsifying sexual abuse charge (continued...) (continued...)

In the bodily integrity cases, we often have stemming from a social worker’s search, the considered criminal assaults committed by Fourth Amendment provides the sole means teachers and other persons to whom the for analysis. Fourth Amendment does not readily or easily apply.25 Where the plaintiff alleges only harms VII. The district court denied Strickland’s re- quest for official immunity from the state law 24 (...continued) claims. Mrs. Roe and Jackie argue that we against father that led to three-year separation); lack appellate jurisdiction over the district Kiser v. Garrett, 67 F.3d 1166, 1173 (5th Cir. court’s denial of Strickland’s official immunity 1995) (describing right as “nebulous, especially in defense against the Texas state law claims. the context of a state’s taking temporary custody of a child during an investigation of possible paternal A defendant may appeal an order denying abuse”); Doe, 2 F.3d at 1418 (considering case immunity under state law if “the state’s where social worker had fabricated charges of child doctrine of qualified immunity, like the federal abuse, which led to temporary separation of two doctrine, provides a true immunity from suit children from their parents); Hodorowski v. Ray, and not a simple defense to liability.” Sorey v. 844 F.2d 1210, 1217 (5th Cir. 1988) (“[W]e do Kellett, 849 F.2d 960, 962 (5th Cir. 1988). not think that appellants in this case should have Texas’s official immunity doctrine relieves known that their conduct in removing the state officials of the burden of suit as well as of Hodrowski children from the home violated the liability for damages. Cantu, 77 F.3d at 804. nebulous right of family integrity.”). See Wallis v. Consequently, we have jurisdiction to consider Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) the question of state, official immunity. (finding Fourteenth Amendment created substantive due process rights protecting against Roe then argues that we lack jurisdiction removal). because the district court’s denial of official 25 Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, immunity turned on resolving a disputed issue 451-52 (5th Cir. 1994) (en banc) (finding of factSSwhether Strickland acted in good substantive due process bars teacher from faith. The term “good faith” in Texas’s official molesting student); Doe v. Rains County Indep. immunity cases is somewhat misleading. The Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995) Texas Supreme Court defines the test as (“[W]e have little trouble concluding that the Does’ objective and “derived substantially from the allegations are sufficient to establish that Sarah test that has emerged under federal immunity suffered an actionable deprivation of her liberty law for claims of qualified immunity in § 1983 interest in freedom from sexual abuse by persons cases.” City of Lancaster v. Chambers, 883 wielding state authority.”); Fee v. Hardin, 900 S.W.2d 650, 656 (Tex. 1994).26 Because the F.2d 804, 808 (5th Cir. 1984) (citation and quotations omitted) (finding that a teacher violated a student’s substantive due process rights by inflicting corporal punishment that was “arbitrary, 25 (...continued) capricious, or wholly unrelated to the legitimate grade student to a chair for most of two school state goal of maintaining an atmosphere conducive days). to learning”); Jefferson v. Ysleta Indep. Sch. Dist., 26 817 F.2d 303, 305 (5th Cir. 1987) (finding teacher The Texas Supreme Court described the violated substantive due process by lashing second standard in more detail as applied to the pursuit (continued...) (continued...)

district court denied the state official immunity jurisdiction under 28 U.S.C. § 1367. If the defense for the same reasons it denied the court declines supplemental jurisdiction, it federal defense, we have jurisdiction. should dismiss without prejudice so that plaintiffs can pursue their claims in Texas state Although the Texas Supreme Court court. describes official immunity as similar to federal immunities, we have difficulty evaluating the The order denying qualified immunity is claim of official immunity now that the REVERSED. This matter is REMANDED for constitutional claims have been dismissed. consideration of the state law claims and for Dismissing those claims may not, however, further proceedings, as appropriate, in ac- guarantee Strickland official immunity for the cordance with this opinion. state law claims of invasion of privacy, intentional infliction of emotional distress, false imprisonment, trespass, and negligent failure to train and supervise. We remand to the district court either to reconsider the official immunity question or to decline supplemental

26 (...continued) case before them:

We hold that an officer acts in good faith in a pursuit case if:

a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit.

City of Lancaster, 883 S.W.2d at 656. See Univ. of Houston v. Clark, 38 S.W.3d 578, 586-87 (Tex. 2000) (resolving officer’s official immunity defense at summary judgment); Wadewitz v. Montgomery, 951 S.W.2d 404, 466 (Tex. 1997) (“[A] court must measure good faith in official immunity cases against a standard of objective legal rea- sonableness.”); 42 TEX. JUR. 3D Government Tort Liability § 123 (1995 ed.) (“The test is one of objective legal reasonableness, without regard to whether the government official involved acted with subjective good faith and clarifies the good faith standard in official immunity cases generally.”).

Footnotes

[6] 7 (...continued) (...continued) in which the defense of qualified immunity is raised (1971)). is to determine first whether the plaintiff has 8 alleged the deprivation of a constitutional right at The Third and Ninth Circuits have held that a all.”). social worker must satisfy the warrant and prob- able cause requirements to conduct a strip search 7 Darryl H. v. Coler, 801 F.2d 893, 901 (7th of a child. Good, 891 F.2d at 1092 (evaluating Cir. 1986) (“On this record, we believe that the search of home and strip search of child under the district judge was correct in holding that the probable cause and warrant standard); Calabretta, searches in question here could be conducted with- 189 F.3d at 817-18 (applying warrant and out meeting the strictures of probable cause or the probable cause requirement to coerced strip search warrant requirement.”); Landstrom v. Ill. Dep’t of of three-year-old child in her own home). The Children & Family Servs., 892 F.2d 670, 676-77 Tenth Circuit has held that a police officer must (7th Cir. 1990) (stating that Darryl H. did not obtain a search warrant before entering a home and “clearly establish” child’s right not to take off her conducting a strip search of an infant. Franz v. underpants when school official searched for Lytle, 997 F.2d 784, 791 (10th Cir. 1993). evidence of physical abuse). The Fourth Circuit 9 applies the more lenient standard to social workers Tennenbaum v. Williams, 193 F.3d 581, 604- investigative home visits, suggesting that it might 05 (2d Cir. 1999) (requiring judicial approval follow the Seventh Circuit. Wildauer, 993 F.2d at where social workers removed five-year-old from 372 (citing Wyman v. James, 400 U.S. 309, 318 school without parents’ knowledge and had phy- (continued...) sician perform gynecological exam).